It’s the immediate time after the adoption of the constitution in Philadelphia. A compromise between different ideological factions, northerners and southerners, has nonetheless produced a governing document for the new nation. Part of the compromise involves the listing of rights in a bill of rights. The first amendment, protecting a free press among other rights of expression is encoded.
The young nation faces challenges, and in an effort to maintain order and identify possible dissidents, the President orders all personal and private correspondence to be opened and inspected before it reaches its final destination. Letters are opened, conversations are monitored.
It seems outrageous of course, the government opening each piece of mail and reading its content? Yet, as the Snowden revelations show, this massive scale of surveillance has been carried out by the United States government for longer than a decade. In response to the threat of terror, governments have architected a surveillance system many times more powerful, invasive and global than opening letters.
So what is the difference? Even after the Snowden revelations, Pew has found 46% of Americans still support the mass collection of data (Gao 2015). Fear is a strong motivation, and political leaders have certainly stoked fear to justify the surveillance state. Could it also be the secrecy and mysterious of the NSA? Most users of the Internet have little sense of the technological infrastructure that makes it work. While we would justifiably be upset if our mail was delivered to us opened and searched through, we have no idea if our emails have been seen by someone else. Finally, there is this prevailing sense that if you have nothing to hide, you have nothing to fear.
Should Americans expect privacy when talking to their loved ones, doing business, and discussing politics online? Realistically, and at this moment, they cannot and should not. But normatively? Beyond a doubt. The right to privacy, while not explicitly encoded into the U.S. Constitution, is a fundamental right to the functioning of a free society.
Glen Greenwald in Nowhere to Hide not only details the massive revelatory leak by Edward Snowden of NSA surveillance but argues privacy must be a basic right in democracy. Why should Americans demand privacy online? Greenwald advances several arguments, and I will tie them to my own.
First, our lives are conducted online just as much as they are in the offline world. Sure we watch YouTube videos and brose facebook, mostly harmless activities. But we also bank online, research symptoms of a potential illness, and look for new jobs. The business of life has moved online, and it is convenient in many ways, but we also must expect the same privacy when living online just as much as private conversations. Out of necessity, we should expect privacy. Surveillance of private communications online necessitates the building of systems that break online programs. Surveillance makes online interaction less safe, by creating vulnerabilities in the software systems. For example, the debate over the FBI asking Apple to create a “backdoor” into its OS would have created serious technically vulnerabilities susceptible to malicious actors (Yadron 2016).
Second, free speech, as protected in the U.S. Constitution, cannot be separated from online activity any more. Greenwald notes how any device connected to the Internet can become a surveillance device. And expression of ideas simultaneously requires the use of the Internet. Prior restraint of speech is traditionally understood as censorship before speech can be made, through policy and regulation. For example, think of the Nixon administration tried to block the publications of information revealed in the Pentagon papers, and the Supreme Court found their attempted restraint unconstitutional. Surveillance has a similar effect in changing behavior, so can we consider surveillance a prior restraint?
Finally, privacy is essential to social change. The Underground Railroad was underground for a reason, it had to evade the watchful eyes of authorities seeking to return fugitive slaves back to the South. As Greenwald makes clear, those invested in the status quo, whether it be segregation or the military industrial complex, will attempt to infiltrate dissidents and radicals. They will instill fear, stoke discord and mistrust among leaders of protest movements. The FBI encouraged MLK to kill himself after sending him tapes of recordings of his affairs (Gage 2014). Dissidents, those who are brave enough to speak up against the status quo and risk their safety and livelihoods need the protection of privacy to organize. They need the protection to meet and coordinate, whether it is online or in person. We know from Greenwald that knowing you are being watched changes people, they become less willing to take risks and speak truth to power.
Gage, B. (2014, November 15). What an Uncensored Letter to M.L.K. Reveals. Retrieved from http://www.nytimes.com/2014/11/16/magazine/what-an-uncensored-letter-to-mlk-reveals.html?_r=0
Gao, G. (2015, May 29). What Americans think about NSA surveillance, national security and privacy. Retrieved from http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/
Greenwald, G. (2014). No place to hide: Edward Snowden, the NSA, and the U.S. surveillance state.
Yadron, D. (2016, April 28). FBI confirms it won't tell Apple how it hacked San Bernardino shooter's iPhone. Retrieved from https://www.theguardian.com/technology/2016/apr/27/fbi-apple-iphone-secret-hack-san-bernardino